i 


I  r ^ =^^  I 

U  IN  THE                                                                         5 

P  $ 

j  gaPRE^E  +  0001^  +  §P  +  ILjDIN®I3.         i 

I  ^                                                                   :     8 

^  Soutl'e*'"   6»'<i"d   Division.                                       '         p 

^  In  Vacation  after  the  September  Term,  a.  d.  1887.                    i 

I  ! 

I  I               i 

y  THE  PEOPLE  OF  THE  STATE  OF                \                                                 '          S 

S  ILLINOIS,  ex  relatione  John  P.  Neal,                 j                                                '          % 

va  petition  for            I         H 

i  vs-                                  /                                    Is 

g  I                    MANDAMUS.          j             jg 

i 
I 

i 


JOHN  A.  ROCHE,  Mayor  of  the  City  of 
Chicago  et  al. 


PETITION  FOR  REHEARING. 


J.  L.  HIGH, 

Counsel  for  Relator. 


2  OHicAcao 

R  HORACE    O'DONOQMUE,   BRIEF    AND    ABSTRACT    PHINTEH,    192    S.    JEFFERSON    ST. 

P  I  TELEPHONE  4-830. 


I 

P 

I 


N  THE 


.SapREME  +  Gmm  +  ©p  +  lEwpjeig, 

Southern    G^ci"<i    Oi^isio"- 


In  Vacation  after  the  September  Term,  A.  D.  1887. 


THE  PEOPLE  OF  THE  STATE  OF 
ILLINOIS,  ex  relatione  John  P.  Neal, 


JOHN  A.   ROCHE,  Mayor  of  the  City  of 
Chicago  et  al. 


PETITION  FOR 

MANDAMUS. 


PETITION  FOR  REHEARIIVG. 


The  relator  respectfully  asks  the  court  to  reconsider 
its  judgment  in  this  cause,  and  to  enter  a  final  judgment 
in  accordance  with  the  stipulation  and  agreed  statement  of 
facts,  upon  which  the  case  was  submitted,  upon  the  fol- 
lowing grounds: 

The  court,  in  its  opinion,  holds  that  the  mortgage, 
to  secure  the  purchase  money  of  the  premises  in  contro- 
vers}',  should  run  to  the  cit\'  of  Chicago,  instead  of  to  the 
Board  of  Education.  B\'  the  stipulation,  or  agreed  state- 
ment of  facts,  upon  which  the  case  was .  submitted,  it  was 
agreed    that    if  the   court   should    hold    that  the  mortgage 


should  be  executed  to  the  city  of  Chicago,  a  final  order 
might  be  made  directing  the  mayor  and  comptroller  of  the 
city  to  execute  a  conveyance  of  the  premises,  upon  the 
execution  and  delivery  of  the  mortgage  and  bond  secur- 
ing the  erection  of  the  depot,  to  the  city  of  Chicago, 
instead  of  to  the  Board  of  Education.  The  court  declined 
to  enter  such  judgment,  upon  the  ground  that  it  did  not 
appear  that  the  stipulation  was  authorized  by  the  Board 
of  Education,  and  that  counsel  had  no  authority 
to  bind  the  Board  by  such  stipulation.  This  stip- 
ulation was  in  fact  authorized  by  the  Board 
of  Education,  at  a  regular  meeting  held  Sep- 
tember 7,  1887.  By  an  oversight  in  making  up  the  orig- 
inal record,  the  consent  of  the  Board  to  this  stipulation 
and  the  authority  of  its  counsel  to  execute  it  were  omitted. 
Counsel  for  the  respective  parties  have  stipulated  that  this 
omission  in  the  record  may  be  supplied  by  a  certified  copy 
of  the  proceedings  of  the  Board  of  Education  at  its  meet- 
ing of  September  7,  1887.  Upon  the  convening  of  the 
court  at  the  March  term,  1888,  we  shall  file  this  stipula- 
tion, and  ask  leave  to  file,  as  a  supplement  to  the  original 
record,  the  consent  of  the  Board  to  the  agreed  statement 
of  facts.  The  stipulation  consenting  to  the  filing  of  such 
supplemental  record  is  as  follows: 

(title  of  the  cause.) 
"  It  is  stipulated  by  and  between  counsel  for  the 
respective  parties  to  the  above  entitled  cause,  that  the 
accompanying  copy  of  the  proceedings  of  the  Board  of 
Education  of  the  city  of  Chicago,  at  a  meeting  held  Sep- 
tember 7,  1887,  approving  of  the  stipulation  upon  which 
the  above  entitled  cause  was  submitted  for  hearing  at  the 
September  term,  A.  D.  1887,  which  copy  is  dul}'  certi- 
fied  by    Shepherd  Johnston,   clerk   of  said   board,    under 


3 

date  of  January  27,  1888,  may  be  filed  herein  with  Hke 
effect  as  if  filed  with  and  made  part  of  the  original  record  in 
this  cause;  and  that  if  the  court  shall  i^rant  a  rehearing, 
or  reopen  this  cause,  in  accordance  with  the  petition  of 
the  relator  for  a  rehearing,  all  parties  waive  the  right  to 
an)'  further  argument,  and  consent  that  the  court  may 
finally  dispose  of  this  cause  at  the  March  term,  A.  D. 
1888,  and  may  forthwith  enter  such  final  judgment  herein 
as  it  may  deem  proper  under  such  stipulation,  and  in 
accordance  with  the  law. 

J.    L.    Hi(;h, 

Counsel  for  Relator. 

J.  W.  Green, 
Counsel   for   Jo  Jin   A.    RoeIu\    Mayor,   and    Augustus  H. 
Hurley ,  Comptroller,  of  the  City  of  Chieago. 

CuAS.  H.  Morse, 
Counsel  for  the  Board  of  Education  of  the  City  of  Chicago  f 

The  record  of  the  proceedings  of  the  Board  of  Edu- 
cation, at  its  meeting  September  7,  1887,  so  far  as  it  per- 
tains to  the  matter  in  question,  is  as  follows: 

"  STIPULATION    IN    MATTER    OF    MORTGAGE    TO    BE    GIVEN 

BV    CHICACrO    .\;    GREAT  WESTERN    RAILROAD  CO. 

Mr.  Doolittle,  chairman  of  the  committee  on  school 
fund  property,  presented  a  stipulation  in  the  matter  of 
the  mandamus  proceeding  brought  in  the  Supreme  Court 
against  this  Board,  the  Mayor,  Comptroller,  etc.,  by  John 
P.  Neal,  to  compel  the  execution  ofa  deed  and  acceptance 
of  the  mortgage  of  $650,000  to  be  given  by  the  Chicago 
&  Great  Western  Railroad  Company,  to  secure  the  payment 
for  the  north  half  of  block  87,  and  all  of  block  88,  school 
section  addition,  to  be  filed  in  the  Supreme  Court  of  the 
State  of  Illinois,  September  term,  accompanied  by  a  reso- 
lution authorizing  the  employment  of  counsel  to  protect 
the  interests  of  the  Board   of  Education. 

Mr.  Stewart  moved  to  amend  the  resolution  by  giving 
authoiity  to  the  president  of  the  Board  to  employ  com- 
petent counsel  in  the  case. 

The  amendment  was  accepted  by  Mr.  Doolittle,  and 
the  resolution,  as  amended,  was  adopted. 


Veas — Messrs.  Brenan,  Stensland,  Niehoff,  Stewart, 
Wenter,  Doolittle,  Nettelhorst,  Clark,  Forch,  McLaren,  and 
the  president — 1 1 . 

Nays — o. 

The  following  is  the  resolution  adopted  by  the  above 
vote: 

Resolved,  That  the  attorney  of  the  Board  be  directed 
to  execute  the  following  stipulation  in  the  name  of  the  Board 
of  Education;  that  the  president  of  the  Board  be  and  hereby 
is  authorized  to  retain  and  employ  competent  counsel 
in  said  proceedings,  and  to  take  all  prudent  measures  to 
expedite  the  hearing  and  determination  of  the  cause. 

The  following  is  the  stipulation  referred  to  in  the 
above  resolution: 

Supreme  Court — State    of  Illinois. 

Northern  Grand  Division. 

Sept.    Term,  A.  D.  1887. 

The  people  ex  rel,  John   P.  Neal  ] 

vs.  j 

John    A.     Roche,     Mayor,     the  )■ 

Board  of  Education  of  the  city  j 

of  Chicago,  et  al.  j 

In  the  above  entitled  cause  the  parties  agree  that  the 
facts  herein  set  forth  are  correctly  stated,  and  that  the  facts 
set  forth  in  this  stipulation,  signed  by  the  counsel  of  all 
the  parties,  shall  be  considered  by  the  court  the  same  as 
if  they  were  returned  by  the  said  respondents,  John  A. 
Roche,  Mayor,  and  Augustus  H.  Burley,  Comptroller, 
and  the  Board  of  Education  of  the  city  of  Chicago,  and 
the  same  as  though  summons  had  been  issued  and  the 
respondents  had  answered  to  the  petition  of  the  relato';. 

The  parties  agree  that  the  proceedings  of  the  Board 
of  Education  are  correctly  stated  in  the  petition  of  the 
relator. 

That  the  proceedings  of  the  City  Council  of  the  cit}' 
of  Chicago  are  correctly  stated  in  said  petition. 

That  block  88  and  the  north  half  of  block  87,  of  the 
school  section  addition  to  Chicago,  are  a  part  of  the  six- 
teenth section  originally  allotted  by  the  act    of  congress  to 


5 

the  use  of  public  schools,  and  tliat  the  General  Assembly 
has  by  one  or  more  public  acts  declared  the  title  to  said 
premises  to  be  vested  in  the  city  of  Chicago  for  the  use  of 
public  schools. 

That  the  petitioner  has  procured  and  caused  to  be 
surrendered  and  cancelled  all  outstanding  leases  upon  said 
premises,  at  an  expense  of  about  the  sum  of  $341,378. 

That  the  relator  has  prepared  and  tendered  to  the 
Board  of  Education  a  mortgage  running  to  said  Board 
for  the  sum  of  $650,000,  to  secure  the  purchase  money, 
the  form  of  which  mortgage  has  been  approved  by  the 
Board  of  Education,  and  that  the  said  petitioner  and  rail- 
road company  have  tendered  tli^e  said  mortgage  and  de- 
manded a  deed  for  the  said  premises  from  the  city  of  Chi- 
cago, through  its  Mayor  and  Comptroller. 

And  that  the  said  relator  has  procured  to  be  executed 
a  bond  as  set  forth  in  said  petition. 

And  it  is  agreed  that  the  said  John  A.  Roche,  Mayor, 
and  the  said  Augustus  H.  Burley,  Comptroller  of  the  city 
of  Chicago,  refuse  to  execute  a  deed  to  the  said  premises, 
unless  the  said  relator  and  the  railroad  company  shall  ex- 
ecute to  the  city  of  Chicago  a  mortgage  securing  the  pur- 
chase money  of  said  premises  to  the  city  of  Chicago  int 
stead  of  to  the  Board  of  Education,  for  the  reason  tha- 
the  city  holds  the  said  propert}'  in  trust  for  the  school 
fund,  and  the  purchase  money  mortgage  should  be  exe- 
cuted to  and  retained  by  said  city,  and  that  the  interest 
and  principal  should  be  collected  and  held  by  the  cit\'  in 
trust  for  the  school  fund,  and  that  the  city  alone  has  the 
power  to  declare  a  forfeiture  for  breach  of  the  conditions 
of  the  mortgage;  and  that  the  city  of  Chicago  would  be 
responsible,  as  trustee  for  the  school  fund,  in  the  event 
that  the  mortgage  should  be  executed  to  the  Board  of 
Education,  and  any  misapplication  of  the  funds  derived 
under  and  by  virtue  of  said  mortgage  should  be  made  by 
the  Board  of  Education,  and  that  the  school  board  is  not 
authorized  by  law  to  hold  said  mortgage  in  its  own  name, 
which  positions  and  reasons  are  controverted  by  the  Board 
of  Education. 

And  it  is  further  agreed  that  the  court,  on  the 
hearing  of  the  petition,  if  it  shall  determine  that 
the     said     mortgage     can      lawful!}-     be      made     to    the 


Board  of  Education,  then  the  court  shall  make  a  final 
order  or  grant  a  peremptory  mandamus,  if  the  case 
requires  it,  compelling  the  Mayor  and  Comptroller  to  exe- 
cute the  conveyance.  If,  however,  the  court  should  hold 
that  the  mortgage  should  be  executed  to  the  city  of  Chi- 
cago, then  it  is  agreed  that  a  final  order  may  be  made  by 
the  court  directing  the  Mayor  and  Comptroller  of  said  city 
to  deliver  and  execute  the  conveyance,  upon  the  execution 
and  delivery  of  the  mortgage  and  the  bond  to  the  city  of 
Chicago,  instead  of  to  the  Board  of  Education. 

It  is  also  agreed  that  the  Supreme  Court,  upon  the 
facts  set  forth  in  this  stipulation,  may,  as  it  shall  be  advised, 
cause  to  be  entered  such  *an  order  in  this  proceeding  as 
shall  effectuate  the  sale  and  conveyance  of  the  said  land, 
and  the  securing  of  the  consideration  to  the  school  fund, 
and  that  such  order  may  be  embraced  in  the  peremptory 
mandamus  declaring  whether  the  city  or  the  School  Board 
shall  have  the  charge  and  control  of  the  funds  derived 
from  said  sale." 

It  thus  appears  that  the  stipulation  and  agreed  state- 
ment of  facts  upon  which  the  case  was  submitted  was  ex- 
pressly   authorized    by    the     Board    of    Education.      The 


city  of  Chicago,  instead  of  to  the  Board  of  Education,  by 
the  terms  of  the  stipulation  thus  authorized  by  the  Board, 
the  court  is  fully  warranted  in  awarding  a  peremptory 
mandamus  against  the  Mayor  and  Comptroller,  directing 
them  to  execute  a  conveyance  upon  the  execution  and  de- 
livery of  the  mortgage,  and  the  bond  for  the  erection  of 
the  depot,  to  the  city  of  Chicago. 

We  do  not  ask  the  court  to  reconsider  its  opinion  as 
to  the  power  of  the  Board  of  Education  to  take  and  hold 
the  mortgage  in  question;  and  by  the  stipulation  first  above 
set  forth  all  parties  waive  further  argument  on  that  point, 
and  consent   that  the   court   may  forthwith,  at   the   March 


term,  enter  judf^ment  in  accordance  with  the  agreed  state- 
ment of  facts  and  its  views  of  tiie  hiw.  By  the  agreed 
statement  of  facts,  it  ap{)ears  that  upon  the  faith  of  the 
contract  of  sale  we  Iiave  ah-ead\'  expended  $341,3/8  '" 
purchasing  the  outstanding  leases  upon  the  premises.  By 
the  failure  to  execute  the  conveyance,  growing  out  of  the 
tlisagreement  between  the  city  and  the  Board  of  Education, 
touching  the  proper  grantee  in  the  mortgage,  we  have  not 
only  lost  the  interest  upon  this  large  sum  of  mone)',  but 
have  been  dela}'ed  a  year  in  the  construction  of  our  pas- 
senger depot  upon  these  premises.  The  great  damage  and 
loss  which  we  have  thus  sustained  will,  we  trust,  serve  as 
an  apolog)-  for  respectfully,  but  earnestly,  asking  the  court 
to  forthwith  enter  a  final  judgment,  awarding  a  peremptory 
mandamus  against  the  Mayor  and  Comptroller,  upon  our 
executing  the  mortgage  and  bond  to  the  city,  or  such  other 
final  judgment  as  in  the  opinion  of  the  court  may  carry 
out  the  spirit  of  the  contract.  Should  the  court  so  desire, 
counsel  for  the  respective  parties  will  submit  suggestions 
as  to  the  form  of  the  judgment. 

Respectfully  submitted, 

J.  L.  High, 

Counsel  for  Relator. 


EKRM 


